There has been some good news on pro bono in the last couple of years: the LSC Pro Bono Grant Program has been launched and LSC has revised its PAI 12.5% set-aside rules. However, beyond this, it has been a bit of a mixed time for the pro bono movement. The ABA Pro Bono Summit (another link) seems not to have released a report (a big pity, if what I heard about the topics explored was right), and the other proposals in the the LSC Task Force Report seem not to have gone as far as one might have hoped. In addition, the transition at the Pro Bono Institute while surely very hard, brings the potential for important new initiatives.)
It is important that the Chiefs’ 100% Resolution does include a reference to “pro bono assistance” as one of the “significant advances in creating a continuum of meaningful and appropriate services to secure effective assistance for essential civil legal needs.”
So the challenge is this, what should the pro bono movement do to respond to the challenge of the Resolution and figure out how it and the bar can play their fair role in getting us to 100%.
As with so much of the growing follow-up to the 100% resolution, I think the key is the triage component of the vision in the Resolution (“triage models to match specific needs to the appropriate level of services.”)
I would suggest that pro bono folks should focus on how they fit into each of the components of the continuum of services, and think about how they might expand their contributions by building out those that match best the capcities and needs of the lawyers themselves.. In other words, this is not just about increasing pro bono, but about focusing it. In particular, and just for a start:
- Providing triage services. Why not envision pro bono lawyers as routine providers of triage services. They could do regular shifts at self-help centers, community outreach locations, etc., engage in confidential conversations with litigants, and make appropriate referrals. A side effect could be obtaining much better data not just on need, but on what is needed to meet need.
- Unbundled services generally. For many pro bono lawyers, the limited nature of unbundled commitments would be very appealing. I do not know how many states explicitly promote that option.
- Attorney of the day. Some states have had great success with attorney of the day programs, using unbundlng to provide services to a large number.
- Resolution calendars. Other states have used self-help center and court staff to focus such assistance on cases that are “resolution-ready” and need only a little assistance from attorneys to get them over the hump. Again a particularly focused use of pro bono.
- Supervision of, and backup of, nonlawyers. As nonlawyers are permitted to provide more and more services, pro bono lawyers may be able to provide a unique role in the limited supervision that will be needed (often not in the courtroom), as well as in providing the advanced representation occasionally needed in these cases.
- Incubators. With over 50 incubators helping young lawyers build sustainable practices, surely there are roles of experienced attorneys to mentor and help.
- Beyond formal access. Its always been a tricky point how far. government-guaranteed and funded access to justice programs can go in confronting injustice-producing institutions. As triage does a better job of focusing tasks and resources, the need for this element will become even more clear, and the role of pro bono more critical.
Let me then ask this question: Where in the community pro bono community is the discussion about the relationship of the Resolution to the pro bono resolution happening? Remember, with the 12.5% set aside every state has in place a bureaucracy to facilitate this discussion, and there is nationally in place an innovation grant program which can be used to focus on, and test, new approaches to the role of pro bono in 100%.
Indeed, I would ask the same question of the many organizations listed in David Udell’s excellent analysis of the different initiatives in the whole broader access to justice field, and the roles that those organizations are playing. What are you doing to implement the Resolution, what role do you see yourself playing, and how are you planning with others to do so?
For at least two decades we have been asking for judicial leadership in access to justice. Now that we so clearly have it, are we taking advantage of the moment, or are letting it slip away?